President Biden Intensifies Efforts to Spur COVID-19 Vaccinations
- July 30, 2021
President Biden announced July 29 new actions to spur vaccinations for COVID-19, including requiring all federal employees and onsite contractors to attest to their vaccination status. Those who are not fully vaccinated will be required to wear masks on the job, physically distance from others, and comply with a weekly or twice weekly testing requirement. Official travel for non-vaccinated individuals also will be restricted.
The move comes amid surging COVID-19 infections fueled by the highly transmissible Delta variant.
Earlier in the week, the Department of Veterans Affairs (VA) became the first federal agency to mandate COVID-19 vaccinations for their frontline health care workers. The VA gave workers, including physicians, dentists, podiatrists, optometrists, registered nurses, and physician assistants, eight weeks to be vaccinated.
“Whenever a Veteran or VA employee sets foot in a VA facility, they deserve to know that we have done everything in our power to protect them from COVID-19. With this mandate, we can once again make—and keep—that fundamental promise,” said VA Secretary Denis McDonough in a statement.
On July 26, more than 50 medical groups, including the American Medical Association, the American Nursing Association, the Association of American Medical Colleges, and LeadingAge also endorsed requiring health care workers to be vaccinated.
“Employer vaccine mandates are effective and lifesaving, and they are especially appropriate in health care and long-term care settings. No patient should have to worry that they could become infected by one of their care providers, and no provider should put their patient at risk,” said Dr. Ezekiel Emanuel, vice provost for global initiatives at the University of Pennsylvania, who organized the joint statement.
"We stand with the growing number of experts and institutions that support the requirement for universal vaccination of health workers. While we recognize some workers cannot be vaccinated because of identified medical reasons and should be exempted from a mandate, they constitute a small minority of all workers. Employers should consider any applicable state laws on a case-by-case basis," the statement said.
Last week, hospital groups also urged their member hospitals and health systems to implement mandatory COVID-19 vaccination policies.
Reflecting mounting concern about the rapid spread of the Delta variant, the Centers for Disease Control and Prevention on July 27 issued revised guidance indicating that individuals in areas with high or substantial rates of transmission should wear masks indoors in public places regardless of whether they are vaccinated.
Federal Law Doesn't Prohibit Vaccine Mandates, DOJ Says
Meanwhile, the Department of Justice (DOJ) Office of Legal Counsel released publicly this week a memorandum opinion concluding that federal law does not prohibit public agencies and private businesses from mandating vaccinations even for vaccines that are only authorized for emergency use by the Food and Drug Administration (FDA),
The opinion is not binding on the courts but may offer some additional support for public and private entities that have or are contemplating imposing vaccine requirements.
Since December 2020, the FDA has issued emergency use authorizations (EUAs) for three COVID-19 vaccines. Some public and private entities, including health care organizations, have announced that they will require individuals to be vaccinated against COVID-19.
The vaccine mandates, however, have prompted lawsuits that center in particular on the “option to accept or refuse” language in the federal Food, Drug, and Cosmetic Act regarding medical products like vaccines authorized for emergency use. The lawsuits argue the provision prevents entities from imposing vaccinations requirements while they are subject to EUAs and not fully licensed by the FDA. A Texas judge in June dismissed a lawsuit challenging Houston Methodist Hospital’s mandate that its employees receive the COVID-19 vaccine.
In its opinion, DOJ concludes that “[b]y its terms, the provision directs only that potential vaccine recipients be ‘informed’ of certain information, including ‘the option to accept or refuse administration of the product,’” and does not prohibit entities from imposing vaccination requirements.
“[I]f Congress had intended to restrict entities from imposing EUA vaccination requirements, it chose a strangely oblique way to do so,” according to the opinion. “Congress could have created such a restriction by simply stating that persons (or certain categories of persons) may not require others to use an EUA product,” DOJ said.